Publications

This study describes and analyses the recently adopted foreign investment law (i.e., the Law). This paper presents reasons for the adoption of the Law. For example, this study focuses on the trade war between the United States and China, which has greatly affected the adoption of the Law. The political background that influenced the adoption of the law is revealed. Of note, legal techniques used by the Chinese legislators in the Law are evaluated. For example, a list system for investment sectors is used, which divides all industries into categories with a special regime. This system divides all industries into four categories: (1) encouraged, (2) permitted, (3) restricted, and (4) prohibited. In conclusion, this study emphasizes that changes achieved by the Law are not revolutionary. Some of the consequences that the adoption of the law entails is analyzed. Thus, the Law represents a gradual evolution in how foreign investors access the Chinese economy.

The chapter reviews the mechanism of foreign direct investment controls as implemented in Russia under the auspices of the Federal Law “On Foreign Investments in Russia” No. 160-FZ and Federal Law No. 57-FZ “On the procedure for making foreign investments in companies which are of strategic importance for ensuring the country’s defence and state security”. The author examines the definition of the foreign investor provided by the laws, analyzes the types of activities deemed of strategic importance for national defence and security and describes the thresholds triggering obligations of obtaining prior clearance of foreign investment transactions. A separate section of the chapter is devoted to the analysis of the procedures for obtaining clearances and the consequences of non-compliance. The paper also addresses other rules of the Russian legislation that restrict foreign direct investment to Russia. In the last section of the chapter, the author summarizes the experience of 10 years of application of foreign direct investment control mechanisms in Russia and poses questions on the possible implications of Russia’s experience for the EU Regulation establishing a framework for the screening of foreign direct investments into the Union.

This volume examines the elements of formalism and decisionism in Russian legal thinking and, also, the impact of conservatism on the interplay of these elements. The actual conservative narratives, about the distinctiveness of Russian law, reveal certain features of the intellectual culture that is transmitted in legal education, scholarship and practice. These narratives are based on the idea of sovereignty understood as legal omnipotence of the state. References to sovereignty justify the requirement of legality in the sense of fidelity to the letter of the law. They also often serve as a rationale for crafting exceptions to constitutional non-discrimination principles as they are applied to political, religious, sexual and other minorities.

This chapter examines how Russians justify wars in the post-Soviet era. As will be shown, the Russian philosophical tradition developed somewhat differently from that of the West. Neither in Imperial Russia, nor during the Soviet period, did secular writers pay much attention to issues related to the justification of war. Meanwhile the Russian Orthodox Church tended to view war as an occasionally necessary lesser evil, not as something which can be characterized as ‘just’. Since the collapse of the Soviet Union, political leaders have tended to adopt a Realist approach and to frame war in terms of security rather than justice. Church leaders and secular intellectuals have on occasion referred to Russia’s wars as 'just' and made some reference to Western just war principles, but they have not for the most part endorsed those principles fully. It remains to be seen whether Russian thought on this issue will converge with that of the West or diverge further from it.

Symphony as a legal concept was formulated in Late Antiquity by Justinian I, a famous Byzantine Emperor, in his Novella 6 of 535 C.E., and it is readily utilized by the post-Soviet Russian Orthodox Church as the model of ideal church-state relations even at present. The question we ask in this article is if this model, in the manner it was laid down in the policy documents of the Russian Orthodox Church, is compatible (and, if so, to what extend) with the principle of the rule of secular law. This problem will be analyzed in the present paper on the example of the Church’s attitude toward the constitutional principle of secularity and separation of state and church. In Russia, this principle from Article 14 of the Constitution in fact collides with the church-supported tradition of their “harmonious cooperation” which is called “symphony of powers.”

This book presents the very first, interdisciplinarily grounded, comprehensive appraisal of a future “Common European Law on Investment Screening”. Thereby, it provides a foundation for a European administrative law framework for investment screening by setting out viable solutions and evaluating their pros and cons.

Daimler, the harbour terminal in Zeebrugge, or Saxo Bank are only three recent examples of controversially discussed company takeovers in Europe. The “elephant in the room” is China and its “Belt and Road Initiative”. The political will in Europe is growing to more actively control investments flowing into the EU. The current regulatory initiatives raise several fundamental, constitutional and regulatory issues. Surprisingly, they have not been addressed in any depth so far. The book takes stock of the current rather fragmented regulatory approaches and combines contributions from leading international academics, practitioners, and policy makers in their respective fields. Due to the volume’s comprehensive approach, it is expected to influence the broader debate on the EU’s upcoming regulation of this matter.

The book is addressed to participants from academia as well as to representatives from government, business, and civil society.

.

The book is the first research in the Russian scholarly tradition of accounts, notes and memoirs of Russian and Western travelers who visited Mongolia in 17th to early 20th century as a sources on traditional state and law of the Mongols. The authors of notes were diplomats and intelligence officers, scientists and merchants, missionaries and even “extreme tourists.” Using their notes gave an opportunity to form a view on different aspects of power and legal relations in Mongolia. Diverse goals of trips to Mongolia caused visits of foreign contemporaries to various regions of Mongolia at different stages of their political and legal development. The analysis of that sources allows to create the “legal map” of Mongolia during the period of independent khanates and under the power of the Manchu dynasty of Qing including specific features of the legal status of the Northern Mongolia (Khalkha), Southern (Inner) Mongolia and the Zunghar Khanate which was independent state till the mid of the 18th c. The research is based on the analysis of about 200 texts written by travelers as well as on additional materials on history of foreign travels to Mongolia, on persons of travelers themselves. This approach allowed to form an impartial position on the notes and to analyze them critically.
The book is designed for specialists in the field of history of state and law, comparative legal studies, legal and political anthropology, historians, mongolists, specialists in source study, political scientists and ethnographers. It also could be an additional material for students who study these specialties.

This article is a commentary on the decision of the Constitutional Tribunal of the Republic of Poland dated October 22, 2020, in which paragraph 2 of part 1 of article 4a of the Act of January 7, 1993 about family planning, protection of the human fetus and conditions for the acceptability of abortion was found to be contrary to the Constitution of the Republic of Poland. By this decision, which caused a colossal public outcry, the Republic of Poland established a ban on abortion if medical circumstances indicate a high likelihood of severe and irreversible fetal impairment. The author pays special attention to the factual recognition by the Constitutional Tribunal of the Republic of Poland of the subjectivity of persons who physically do not possess either consciousness or their own will, and also assesses the change in the category of legal personality in the Polish constitutional concept, formed by the practice of the Constitutional Tribunal of the Republic of Poland.

The Author concludes, that in bankruptcy cases the ideas of a derivative action and of a class action find their way. The first is typical for the bankruptcy initiation stage and the second – for separate disputes on bringing to subsidiary liability and challenging of transactions. In the context of the chosen problematics the question of creating a mechanism of collective funding of bankruptcy procedures is put up.

The nature of institutional obstacles to initiating a criminal case is analyzed in the article. By virtue of Part 8 of Art. 448 of the Code of Criminal Procedure of the Russian Federation initiation of a criminal case under Art. 305 of the Criminal Code is possible only after a preliminary reasoned judgment of a higher court (in relation to the court that adopted the unjust judicial act) on the circumstances that indicate the commission of this crime. The given example reveals in detail the problems of such legal regulation, and also analyzes other elements of a crime, which, as a basis for criminal liability, presuppose the presence of a preliminary motivated judgment about the circumstances that subsequently become the subject of proof in a criminal case (Articles 157, 197 of the Criminal Code). The presence of institutional obstacles to the initiation of a criminal case, in particular, prejudgment, raises the question of the legal nature of this institution, since in case of prejudgment, criminal prosecution is possible only subject to a preliminary motivated judgment of one or another state body. Based on the example of the historical comprehension of similar provisions (part 1.1 of Article 140 of the Criminal Procedure Code), the conclusion is drawn about the dual material-procedural nature of this institution, as well as the fact that when such provisions are included in the Criminal Procedure Code of Russia, it is necessary to change the criminal law. Consistent, predictable legal regulation can be ensured only if the introduction of institutional obstacles to the initiation of a criminal case is simultaneously accompanied by a change in the norm of the criminal law by fixing the condition of punishment in its hypothesis. Ignoring the material and legal component will lead to a violation of the constitutional principles of action in time of the law that worsens the punishment, namely Part 2 of Art. 54 of the Constitution of the Russian Federation in the interpretation given by the Constitutional Court, as well as in violation of paragraph 1 of Art. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the European Court of Human Rights.

The Author, discussing on the moment when obligations terminate by means of judicial set-off, concludes, that the answer to this question is concealed in the concept of a court decision. The solutions to the put up question depending on application of declaration theory or order theory are analyzed.

The article analyzes specific cases of making court decisions by the rulers Central Asian states on the basis of sources which were either unrelated to the basic legal system of their state or were not sources of law. The author characterizes cases from the Bukhara Khanate of the 16th and 17th centuries and from the Kazakh Steppe of the first half of the 19th century. He finds that rulers used such sources of their court decisions to demonstrate their political position for their own subjects or rulers of neighboring states.

The conception of the outstanding Russian jurist Nicholas Timashev is usually referred to by researchers of political and legal ideas in the field of sociology of law. Timashev usually refers researchers of political-legal ideas to the field of sociology of law. However, this classification narrows the prospects that this concept offers in terms of a pluralistic approach to law - here sociology is only one of the many perspectives for analyzing law, along with psychology, political science, ethics, and other social sciences. In this paper it is argued that Timashev's concept represents one of the most original legal-theoretical constructs of the twentieth century. For a variety of reasons, Timashev did not position this concept in the field of legal theory or philosophy of law. The title of his main work ("Introduction to the Sociology of Law") does not correspond to the content of this work, in which important problems of theoretical jurisprudence are discussed, and in which Timashev tried to formulate a methodological basis for the discussion of additional aspects (collective psychology, ethnology and anthropology, ethics, etc.) of these problems of legal theory.

This paper considers the methodological foundations of Hans Kelsen’s conception of justice. As well, the author examines connecting links between this conception and the key ideas of the pure theory of law. The author’s attention focuses on the critical remarks that are typical for disapproval of Kelsen’s theory in Russian jurisprudence. The paper argues that the pure theory of law is far from denying that law can be considered as a social phenomenon and that there is a connection between moral convictions of legal subjects and how they behave themselves in processes of creation and application of law.